Reform Of The Senate: Fixing A House Of Ill Repute

THERE IS MUCH that is wrong with Australian politics, not least the way it is practised by some in the political community; but the Senate — rigged and booby-trapped by “reform” in 1984 — is arguably very near the root of the problem. Far from the “unrepresentative swill” decried by Paul Keating, the end effect of the 1984 reforms has seen the Senate become a house of ill repute that casts a pall across politics — and government — in Australia.

I must apologise to readers for the length of time it has taken for this article to materialise since I flagged it on Monday and I will admit — at the outset — that the bare bones of the idea presented here today were published in this column a little over a year ago, in a more cursory but wider-reaching article that looked at electoral reform in Australia.

This time, however, I want to look beyond the problem (as it exists at face value) as well as expanding on my proposal for Senate reform: for whilst presenting a model for seemingly radical change is well and good, there’s little point in doing so without making the case based on historical context.

One key difference between the article last October, however, and the political reality as it stands today is very simply that the consequences of last year’s election are now writ large for all to see.

The Senate is a mess; aided by the lower quotas required for winning Senate spots that have applied since the Hawke government enlarged the chamber in 1984 — and exacerbated by activities in “gaming” the system, as typified by the so-called “preference whisperer,” with the specific objective of getting inconsequential fringe candidates into Parliament on a sliver of the vote — fully one-quarter of the Senate’s membership is now constituted by minor parties which would hold little or no representation based on the pre-1984 64-member Senate.

So poorly has Australia been served by the process for electing the Senate it isn’t necessary to invent fanciful hypotheticals to criticise it, for the reality is that bad; and far from a simple rant about an unsatisfactory election result, I believe the problem with the Senate cuts to the very architecture of the institution itself, as fiddled and manipulated and rigged over time to suit the agenda of different governments — usually led by the Labor Party.

I would go so far as to say that the Senate — in constitution, by design, and in practice — has become a house of ill repute; the fault for this lies with Parliament, insofar as it has exercised its right under the Constitution over the decades to turn the Senate into something that I don’t think anyone can credibly claim was intended at Federation.

There are a few points I want to be extremely clear about before we go too far. I dare anyone to try to rebut them.

There is no codified “House of Review” function ascribed to the Senate in the Constitution.

There is no right to Senate representation for minorities embedded in the Constitution.

The number of Senators is constitutionally tied to the size of the House of Representatives.

Each of these points will become relevant as we go on.

If we go back to 1984, I don’t think anyone could argue with the need to enlarge the size of the House of Representatives. After all, the voting population in Australia was growing quickly, and the capacity of 125 MPs to properly service close to 80,000 constituents had become a big ask, to say the least.

Yet the Constitution stipulates that the House of Representatives must be as close as practicably possible to double the size of the Senate: increasing the size of one meant increasing the size of both. But thanks to the proportional voting system used to elect the Senate, enlarging that House meant reducing the quotas required to gain election to it, opening the door to minor parties and Independents.

As reasonable as it was to enlarge the House of Representatives in 1984, the Hawke government was motivated, at least in substantial part, by the ALP’s determination to ensure that the events of November 1975 could never happen again: the dismissal of the Whitlam government was an entirely proper and constitutional course of action. But it viscerally scarred the ALP, which resolved that such an outrage could and would never again be visited upon it if the means to prevent it ever became available.

It is Parliament — not voters directly, nor the Constitution — that determines how Parliament is elected; control Parliament, and you can change the way it is elected. After the 1983 double dissolution Labor, with the balance of power support of the Australian Democrats, did exactly that.

The true effects of those 1984 reforms have taken decades to become fully apparent, but the logical end destination of this exercise in retributive Senate redesign was arguably reached at last year’s Senate election; a record 18 of the 76 Senators elected sit on the crossbench, and some of these — such as Motoring Enthusiast Party Senator Ricky Muir — were elected with what, in round terms, can only be described as virtually no electoral support.

What Paul Keating lamented in 1992 had become “unrepresentative swill” has now progressed to being a full-blown house of ill repute, with warring blocs of Senators seemingly unable to agree on anything without first emasculating it, and with an overriding flavour to the Senate’s activities of seeking to destroy the government elected in a landslide in the lower house.

Meanwhile, the disenchantment and resentment of ordinary voters with politics grows, with blame disproportionately being aimed at the major parties; in turn, this simply drives the emergence of even more minority entities in the Senate, fracturing governance even further, and perpetuating the whole destructive process.

The Senate majority acquired by the Howard government in 2004 was, in this sense, an electoral oddity; two very solid election wins (2001 and 2004) enabled Howard to carry half the Senate in 2001 and a little better than that three years later. But prior to 2001, the Coalition faced a Senate that was hostile to varying degrees; since its defeat in 2007, it has slipped further and further from being able to get anywhere near controlling the upper house.

Ironically, Labor — thanks to its alliance with the Greens — carried the day in the Senate more than it lost during its time in power.

But while there are exceptions to every rule, most of the non-major party Senators elected in the past 30 years have been either openly hostile toward the Coalition or at least sullenly disposed toward it, and when Labor was last in office, its virtual control of the Senate was tempered by the incompetence of its governance, especially on matters concerning money management, and some of the ridiculous laws it passed as the price of retaining the support of the Greens.

Now, the House of Representatives needs to be enlarged again; its 150 MPs are charged with providing effective service to an average of more than 110,000 electors, which is quite patently a ridiculous expectation of any elected representative.

But enlarging the House of Representatives comes with what only the vested interests who stand to benefit from it would describe as anything other than a constitutional headache: the Senate would need to be enlarged as well, and based on the current system of proportional representation, that simply means the chaos and fragmentation that now characterises the upper house would become even more entrenched.

The Constitution does not prescribe the Senate as a “house of review,” although in practice it undoubtedly fulfils such a function. Yet governments have to be able to govern, and a complete inability to pass legislation makes such a proposition impossible — an absurdity in a system of democracy.

Readers know I have accused Labor of repeatedly fiddling the system by which the upper house is elected: by introducing proportional representation to it in the first place in 1948, and then by enlarging it to try to stop the Coalition from ever controlling it again in 1984.

But if it was Labor — and not the Coalition — with the superior historical record of controlling the Senate, would it have done so? I think not.

And in turn, this points to the ALP having behaved to compensate for its inability to win the votes it needed to win control of the Senate by making it impossible for anyone else — especially those who once could — to do so.

Pardon my French, but that’s fucked, even allowing for the follow-up disclaimer that “that’s politics.”

Every time I have a discussion with people of Left-leaning persuasion about the problem of the Senate, their responses are pure emotive gobbledygook designed to make me sound like an undemocratic tyrant. Don’t you welcome diversity of opinion? Don’t you think there should be a variety of voices having input into government? Do you think it’s a good idea to disenfranchise minorities? And so forth.

Well, to be blunt, I think that if parties and/or candidates are incapable of winning a reasonable stipend of electoral support then there is no place for them in Parliament.

There is no entitlement to a seat in Parliament simply because you want one; there is no right for a particular party to win seats even if it can garner next to no support.

And if someone like Ricky Muir can win a Senate spot with 1,500 primary votes when the quota is 480,000 votes, then it is the system elections are conducted on that is broken.

One of the arguments that often gets thrown at me in response to my advocacy of First Past The Post (FPTP) voting is that in a hypothetical election featuring 12 candidates, someone with 8.5% of the vote might win.

Enter the 2013 Senate election. Muir didn’t even win 0.85%, let alone 8.5%, yet he was still elected. There goes the theory FPTP is worse than the present system.

There is an elected government that has been unable to pass virtually any legislation without it being mangled and emasculated; some would argue this improves outcomes. Yet the same government — beholden to the emaciated version of its program the Senate has enacted — is nonetheless paying a heavy political price in terms of popular support despite the “improvements” forced upon it by the upper house.

There goes that theory too.

And I do hold to the opinion that elected governments should be able to implement their policies; if these are bad, or have adverse consequences for too many people, then the next election is only ever three years or less away in Australia: and the people can vote the government out.

As things stand, the Senate has evolved into a professional wrecking chamber, aiming to destroy the Abbott government, holding an unconstitutional inquiry into an elected government in one of the states, and irrespective of whether you vote Liberal, Labor, Greens or whatever, if you care at all about democratic process in this country, this should enrage and terrify you.

But the Senate has to be enlarged to enable the House of Representatives to grow as well.

To this end — and to borrow from the October article — I propose the following:

  • The wholesale abolition of proportional voting in the Senate.
  • The division of each state into six upper house districts (or provinces, or constituencies, or ridings, or whatever name they are given).
  • Each of these districts — at a normal half-Senate election — to elect one Senator using an optional preferential voting system.
  • At any future double dissolution election, each district would elect two Senators rather than one, in the way Legislative Council members were elected in Victoria prior to 2001, only using optional rather than compulsory preferential voting.
  • The territories — whose Senators face election whenever the House of Representatives does — would return two Senators at each election using the altered voting method.

To enlarge the House of Representatives from 150 to 180 seats, the six Senate regions this plan calls for would simply become seven, with each state electing a total of 14 Senators rather than 12. But those Senators would need to assemble majority support on preferences in single-member electorates.

As I said in October, I also propose two further reforms to apply to elections for both Houses of Parliament: one, to slightly raise the threshold at which candidates become eligible for public election funding, from 4% of the vote to 5%; and two, a threshold introduced to bar candidates who poll less than 5% of the primary vote in any electorate or upper house district from being eligible to be elected on preferences.

Yes, these changes would favour the major parties and certainly — in the case of the Senate — would stop forever the election of fringe groups with no electoral backing from getting to Canberra.

But why is that such a bad thing?

Anyone who can get out and do the hard work to put together a majority of the vote — not necessarily under their own steam, provided they clear the 5% threshold — could be elected to the upper house. Simply surfing complacently onto red leather off the back of a residual few percentage points would cease to be a red carpet ride into the Senate.

Creating upper house districts, rather than forcing candidates to campaign across a given state in its entirety, can only help them in this endeavour. And so too can the fact that in urban areas especially, pockets of (for example) Greens support are likely to be concentrated — such as in the area covered by Northcote, Brunswick, Fitzroy and Carlton in Melbourne — and therefore conducive to returning a minor party candidate.

My point is that the Senate is broken: and it needs to be fixed.

Arguing that Labor (with the Greens) can control things in power, so there is no problem, is simply wrong: the Senate as it stands was explicitly crafted to cause difficulties for the non-Labor parties. And now, finally, it has. Those difficulties will only worsen as Coalition support recedes from its election high last year. Holding the present rabble in the Senate up as evidence of fault on the part of the Coalition is perverse.

And in any case, the Constitution, whilst prescribing nothing, does actually allude to the system I raise here: it makes provision for Queensland (until or unless federal Parliament provided otherwise, which it did) to be carved into upper house districts at the discretion of the state government of the day. To those who say I’m advocating tampering with “democracy,” I’d counter that at least the Constitution contemplated what I am suggesting, and in doing so considered it feasible architecture for the Senate.

There is not a word in the Constitution about “diverse voices” or proportional representation or the political interests of lunatic fringe entities who, on balance, probably shouldn’t be anywhere near a legislative chamber anyway.

What do people think?

The only way this (or any other meaningful change) can be enacted is if a broad coalescence of parties — probably, the Liberals and Labor — embrace the need for urgent structural reform of the way the Senate is elected and constituted.

That means putting aside petty partisan agendas and instituting a ceasefire in hostilities, however hard that might be.

It means, ironically, that Labor is the key to undoing the very damage its handiwork 30 years ago has ultimately inflicted.

Could Bill Shorten engage in a bit of constructive conduct in the national interest?

I think I’ll leave others to answer that one this time.

 

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8 thoughts on “Reform Of The Senate: Fixing A House Of Ill Repute

  1. What is wrong about having a system like this for the senate

    The Constitution was set up for the senate to be a house of review and to look after the States’ rights and that is why there are 12 senators from each state. It does review all legislation with its committee system — but it does not look after States’ rights, being controlled by political parties.

    I advocate having two more senators from the Northern Territory and the ACT, making 80 senators in total. To overcome the Party domination, I then suggest have 6 senators from each state and 2 Senators from each of the territories be reserved for independents, with the other senators coming from political parties — making 40 independents senators and 40 affiliated with political parties in total. The independent senators would, of course, look after the concerns or States far more than senators aligned with a political party, who always vote along party lines. It would also stop the government of the day having control of both houses of parliament — a reasonably common and most undemocratic possibility under the existing system.

    Of course, the Constitution must ensure that no political party could help in any way any independent senator to be elected and that no senator could be a Minister or shadow minister.

    [url]https://independentaustralia.net/australia/australia-display/an-independent-australian-constitution,4395[/url]

    The senate can be increase at any time but you still would have to have the same amount of independents senators as senators from any political party. All that it would mean that every bit of legislation would have to be negotiated through the senate which has to be done most of the time

    • I have real problems with the NT and the ACT having 4 Senators John (on account of the size of their populations) and there could be some practical issues with what you suggest in terms of implementation and functionality, but (as you are the first cab off the rank — early enough for me to be able to respond before heading out for the day even!) — let’s see what other ideas and thoughts manifest through the day. It may be that I do another post over the weekend, once the Victorian election is out of the way, and discuss them at some length.

  2. Reblogged this on Iain Hall's SANDPIT and commented:
    Yale you provide an interesting template for reform of the senate but my one concern with any reform is that it does not take account for the population differences between the states, under the system you propose the size of the quota to be elected in Tasmania would get even smaller if they were electing 14 senators. That said I like your idea of raising the thresholds for funding and being eligible for the distribution of preferences.

  3. I think you are trying to go much too far and this has no hope of being understood by the masses, let alone sold against the howls of outrage from the beneficiaries of the current system. What is needed is an incremental approach starting with one move which can be sold but which has the effect of reducing the number of leeches first, to mute the howls from these parasites so that the next move becomes possible. The first in my view should be to reduce the number of times a pref can float downstream to three, after which it can no longer be aggregated to other flotsam votes. It would also be possible to sell the idea that pref voting should be optional. These two would deliver a bigger bang for buck than any of the other proposed refinements. You will never get the current parliament and senate to demonstrate altruism so why piss to windward?

  4. I’m sure one of the Liberal core requirements is to keep Labor away from Treasury and ruining the country. I’m also pretty sure I have never seen any electioneering by them directed at Senate seats, rather everything concentrates on the Lower House. Wouldn’t it be easier to put some resources into always doing better than 50% in the Senate thereby leading to control, in Government or not?
    Your ideas are attractive but I agree with Rasputin in that the public may not like or understand the size of the change.

  5. People get very upset when ordinary people get into Parliament, rather than the elite educated at University.

    Back in the day, the Labour Party was made up of people with very little education, but strong views. You can say the same about the Greens too.

    • Jim, nobody is talking about the “educated elites” here, nor slagging off at the “real” people it sounds like you believe are as thick as two short planks compared to them.

      No, I am talking about people and parties who have the voting support of the public, as opposed to those who don’t. The latter group is aided and abetted into the Senate at the direct expense of the former, and it has to stop.

      Frankly, I couldn’t’ care less which members of either group are Rhodes scholars and which are as dumb as dog shit. Any system that elects ANYONE to a seat in the Senate with 1,500 primary votes is seriously broken. The consequences are there for all to see. It is about time something was done to fix it.

  6. It seems that your view is that MPs should only ever represent the majority of the community, and no-one else. This supposes that all debate happens in advance of the parliamentary term through political campaigns, and that the verdict is cast at the ballot box. If this were really the system we had, we’d just have one national ballot to choose which single party will run the state. In other words, there would only be one position to elect: the Prime Minister. In fact we don’t make all decisions in advance: we set up the machinery to accurately make representative decisions. We don’t pick one party to run everything, we set up the arithmetic of parliament to think things through and come to an informed decision on our behalf.

    We set up that machinery because every decision is different, and every decision separately needs an endorsement of the majority of people. Everyone needs to be represented because every debate in parliament is a microcosm of the national debate. It represents, through its arithmetic to the best of its ability, all sides and all views of the debate and reaches the same decision the people would.

    This is the entire premise of parliament. Individual MPs aren’t supposed to represent the majority, that’s why individual MPs can’t make laws on their own. MPs represent particular ideas and views and people. Only when they vote together in a majority can they make law.

    And something for you to consider:

    In a system of single-member seats such as FPTP you need half the votes in half the seats to win a majority of the chamber. That means you can get parliamentary majority and form government with the support of just 25% of voters. In PR that’s impossible, you can only form government or pass law when at least 50% of the population’s worth of MPs agree.

    So in reality it is PR, not FPTP which requires a majority of popular support to achieve power.

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